While the case itself is unreported except in the All England Reporter, a number of newspapers carry the story: http://www.dailymail.co.uk/news/article-2115749/Craggy-island-leap-Louise-Pinchbeck-leapt-wall-hurt-ankle-100k-payout.html
The Claimant (Louise Pinchbeck) successfully brought a negligence claim against Craggy Island Ltd (an indoor rock-climbing centre) for injuries sustained during a bank team-building day organised by her employer in March 2008.
While the claimant had not had much experience rock-climbing, she had spent two hours that morning being closely supervised by two instructors top-roping on a high (40ft) wall with safety harnesses. The injury occurred when she was bouldering without any harnesses on a low (4m) wall and twisted her ankle when she jumped off onto the matting suffering compound ankle fractures.
Although an attempt was made by the defendants to suggest that P’s apology for making a fuss amounted to an admission of guilt, the Court held that this apology should only be taken as an expression of embarrassment and the case proceeded to trial.
While an instructor was supervising the low wall, the claimant argued that no formal instruction for the low wall was given to her other than not to have more than two people on the wall at any one time and she felt that the bouldering wall was almost like a ‘play session’ to cool down. The defendant disputed this allegation and suggested that the claimant received a full safety briefing, however the court held that on the balance of probabilities, the claimant had not been given any clear instructions on how to descend from the wall, and that no clear prohibition was given not to jump.
The Court further held that the defendant had assumed responsibility for the claimant by providing instructors and that:
“the defendant had known that the claimant had, to that point, only climbed upwards that day and had therefore known, or ought to have known that she was at a disadvantage on the low wall. By not instructing her not to jump down from the wall, the defendant had failed to discharge its duty of care to the claimant.”
The Court also held that the instructor should have:
- Been aware that there had been previous injuries sustained historically from other climbers
- observed that the people P was climbing with had also jumped from the wall, prior to P’s injury
This seems a crazy counsel of perfection and one has to wonder what has happened to the doctrine of inherent risk, or to the application of s1 of the Compensation Act? Indeed, while the case digest summary shows the Court was cited Poppleton, they also seem to have disregarded the CA judgment in favour of the earlier (now overruled) High Court decision! Jeremy Howe’s digest summary (in his report of the case for the All England Reporter) suggests that the Court held that the risk of this injury could and should have been prevented by proper instruction, and that this breach of duty made the case unsuitable for an application of the volenti non fit injuria principle, although the claimant should be held 1/3 contributory negligent.
While this analysis is indeed legally correct, it presupposes that there had been a breach of duty. If this is true, possibly the Court was swayed by what it saw as a culpable failure of the defendants that needed punishment, rather than any general duty owed to climbers / boulderers. Indeed without this explanation, it seems difficult to reconcile with the recent CA rugby case of Sutton v. Syston where a breach of duty by the club (to perform a pitch inspection) did not ultimately cause the accident.
It may be worth considering whether had the defendants not ‘assumed responsibility’ by providing an instructor whether liability would have been imposed? To the best of my knowledge, there is no formal qualification for a UK bouldering instructor to hold (unlike the Single-pitch award for top-roping). Given this, did the defendants actually owe the claimant a duty to provide an instructor, or to remind them that jumping from a wall onto mats was dangerous? Indeed, hadn’t we already established both this lack of a duty and the fact that gravity hurts in Poppleton?
If this is indeed an accurate reflection of the case, the sooner it can be appealed the better, to leave it as it is would indeed be a backward jump.